Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No 2054 of 2015· [2019] KEELRC 1254 (KLR)

George Kabiru Mathenge v Muringa Holdings Limited [2019] KEELRC 1254 (KLR)

Employment and Labour Relations Court
5 July 2019
893 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled that firing an employee without a proper hearing is unfair, awarding him over Kshs 1.3 million.

What this practically means

#

Executive summary

#
The Claimant, employed by the Respondent in 2006 and promoted successively to Factory Manager at a gross monthly salary of Kshs 80,000/-, was redeployed in September 2015, suspended on 29 September 2015 to facilitate investigations into a drivers' go-slow, and summarily dismissed by letter dated 25 October 2015. He sued for unfair termination and breach of contract. The Respondent filed a Memorandum of Response and a witness statement but opted not to lead any evidence at the hearing. The Court condensed the issues into three: whether the summary dismissal was unfair, whether there was breach of contract, and appropriate remedies. On procedural fairness, the Court held that a hearing is mandatory under section 41(2) of the Employment Act in cases of summary dismissal, and that investigatory explanations cannot substitute for the disciplinary hearing; no evidence of a hearing, its minutes, or its participants was adduced. On substantive fairness, sections 43 and 45 place the burden on the employer to prove valid and fair reasons, and the Respondent's unadopted witness statements had no probative value, so the burden was not discharged. The Court declared the dismissal unfair and the Respondent in breach of contract. It allowed the heads of salary arrears (Kshs 200,000/-), accrued leave (Kshs 133,333/-), one month's pay in lieu of notice (Kshs 80,000/-) and compensation of nine months' gross wages (Kshs 720,000/-) for about nine years of service, totalling Kshs 1,333,333/-, with costs to the Claimant.

Key legal issues

#
01

Procedural fairness in summary dismissal

Holding

The summary dismissal was procedurally unfair because the Claimant was not afforded the mandatory hearing under section 41(2)

Reasoning

Dismissal on grounds of gross misconduct required a hearing under section 41(2) of the Employment Act. Apart from suspension/leave to facilitate investigations, the Respondent led no evidence of a hearing; no minutes or hearing team members were disclosed. Investigatory explanations cannot substitute for the disciplinary hearing.

p. 2
02

Substantive fairness of termination

Holding

The reasons for dismissal were not valid and fair; the Respondent failed to discharge its statutory burden

Reasoning

Under sections 43 and 45 the employer must prove valid and fair reasons for termination. The Respondent opted not to lead evidence; statements from work colleagues were never adopted and thus had no probative value, so the burden was not discharged.

p. 2
03

Breach of contract - salary arrears and accrued leave

Holding

Both heads allowed; the Claimant's uncontroverted testimony on unpaid salaries and the leave form showing 69 accrued days were accepted

Reasoning

The Claimant's testimony that he was unpaid from July to August and received half salary for September 2015 was unrebutted as the Respondent produced no pay records. The leave application form dated 30 September 2015 showed 69 accrued days, and the Respondent did not contest the claimed Kshs 133,333/- or produce its own computations.

p. 2
04

Remedies - notice pay and compensation

Holding

One month's salary in lieu of notice (Kshs 80,000/-) and 9 months' gross wages (Kshs 720,000/-) as compensation, based on about 9 years of service

Reasoning

Having found the dismissal unfair, the Court held the Claimant entitled to one month's notice pay. For compensation, the Court weighed length of service of about 9 years and awarded the equivalent of 9 months' gross wages at Kshs 80,000/- monthly.

p. 2

Legal principles established

#
  • A hearing is mandatory in cases of summary dismissal under section 41(2) of the Employment Act; investigatory explanations cannot substitute for the disciplinary hearing
  • The employer bears the statutory burden under sections 43 and 45 of the Employment Act to prove valid and fair reasons for termination
  • Unadopted witness statements have no probative value as evidence

Court orders

#
  1. 1.Declaration that the summary dismissal of the Claimant was unfair and that the Respondent was in breach of contract
  2. 2.Award of Kshs 200,000/- in salary arrears
  3. 3.Award of Kshs 133,333/- for accrued leave
  4. 4.Award of Kshs 720,000/- as compensation for unfair termination (equivalent of 9 months gross wages)
  5. 5.Award of Kshs 80,000/- as pay in lieu of notice
  6. 6.Total award of Kshs 1,333,333/- to the Claimant
  7. 7.Claimant to have costs of the Cause

Authorities

#

Legislation

  • Employment Act, 2007section 35(1)(c)
  • Employment Act, 2007section 41(1) & (2)
  • Employment Act, 2007section 43
  • Employment Act, 2007section 45
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment dispute; specific provision not cited in the judgment)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "George Kabiru Mathenge v Muringa Holdings Limited [2019] KEELRC 1254 (KLR)", Case Analysis (2019). Cause No 2054 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1254/eng@2019-07-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.